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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 9, 2011Date of report (Date of earliest event reported)
SPS COMMERCE, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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001-34702
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41-2015127 |
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(State of Incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.) |
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333 South Seventh Street, Suite 1000 |
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Minneapolis, MN
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55402 |
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(Address of Principal Executive Offices)
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(Zip Code) |
(612) 435-9400
(Registrants Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
On June 9, 2011, SPS Commerce, Inc. (the Company) entered into an underwriting agreement
(the Underwriting Agreement) with BVCF IV, L.P. (BVCF) and Stifel, Nicolaus & Company,
Incorporated acting severally on behalf of itself and the underwriters named in Schedule I thereto
(the Underwriters), pursuant to which BVCF agreed to sell, and the Underwriters agreed to
purchase for resale to the public (the Offering), subject to the terms and conditions expressed
therein, 1,204,327 shares of the Companys common stock, par value $0.001 per share (the Shares),
at a price to the public of $16.50 per Share. The Company expects the Offering to close on or
about June 14, 2011, subject to the satisfaction of customary closing conditions. The Company
will not receive any proceeds from the Offering. The Underwriting Agreement provides that the
Company and BVCF will indemnify the Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
The Shares are being offered and sold pursuant to a prospectus supplement dated June 9,
2011 and an accompanying base prospectus dated June 7, 2011, pursuant to the Companys existing
shelf registration statement on Form S-3 (File No. 333-174026) that was declared effective by the
Securities and Exchange Commission on June 7, 2011.
The foregoing description of the Underwriting Agreement is not complete and is qualified in
its entirety by reference to the full text of the Underwriting Agreement, a copy of which is filed
as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated by reference herein. The
Underwriting Agreement has been filed with this Current Report on Form 8-K to provide investors and
security holders with information regarding its terms. It is not intended to provide any other
factual information about the Company. The representations, warranties and covenants contained in
the Underwriting Agreement were made only for purposes of such agreement and as of specific dates
and were solely for the benefit of the parties to such agreement, and may be subject to limitations
agreed upon by the contracting parties. The representations and warranties have been made for the
purposes of allocating contractual risk between the parties to the agreement instead of
establishing these matters as facts, and may be subject to standards of materiality applicable to
the contracting parties that differ from those applicable to investors. Investors are not
third-party beneficiaries under the Underwriting Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof as characterizations of the
actual state of facts or condition of the Company or any of its subsidiaries or affiliates.
Moreover, information concerning the subject matter of the representations and warranties may
change after the date of the Underwriting Agreement, which subsequent information may or may not be
fully reflected in the Companys public disclosures.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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1.1 |
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Underwriting Agreement, dated as of June 9, 2011, by and between
SPS Commerce, Inc., BVCF, IV, L.P. and Stifel, Nicolaus & Company,
Incorporated acting severally on behalf of itself and the underwriters
named in Schedule I thereto. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SPS COMMERCE, INC.
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Date: June 9, 2011 |
By: |
/s/ Kimberly K. Nelson
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Kimberly K. Nelson |
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Executive Vice President and Chief Financial Officer |
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EXHIBIT INDEX
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Exhibit |
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No. |
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Description |
1.1
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Underwriting Agreement, dated as of June 9, 2011, by and
between SPS Commerce, Inc., BVCF, IV, L.P. and Stifel,
Nicolaus & Company, Incorporated acting severally on behalf of
itself and the underwriters named in Schedule I thereto. |
exv1w1
Exhibit 1.1
SPS Commerce, Inc.
Common Stock
Underwriting Agreement
June 9, 2011
Stifel, Nicolaus & Company, Incorporated
As representative of the Underwriters
named in Schedule I hereto,
c/o Stifel, Nicolaus & Company, Incorporated
One Montgomery Street, Suite 3700
San Francisco, CA 94104
Ladies and Gentlemen:
The stockholder of SPS Commerce, Inc., a Delaware corporation (the Company), named in
Schedule II hereto (the Selling Stockholder) proposes, subject to the terms and
conditions stated herein, to sell to the Underwriters named in Schedule I hereto (the
Underwriters) an aggregate of 1,204,327 shares of Common Stock, $0.001 par value (Stock) of
the Company (the Shares).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has prepared and filed with the Securities and Exchange Commission (the
Commission) a registration statement on Form S-3 (File No. 333-174026), and such amendments to
such registration statement as may have been required to the date of this Agreement, under the
Securities Act of 1933, as amended (the Act), and the rules and regulations of the Commission
thereunder. Such registration statement, at any given time, including any amendments thereto to
such time, the exhibits and any schedules thereto at such time, the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act at such time and the documents and
information otherwise deemed to be a part thereof or included therein by Rule 430B under the
Securities Act (the Rule 430B Information) or otherwise pursuant to the rules and regulations of
the Commission thereunder at such time, is herein called the Registration Statement. The
Registration Statement at the time it originally became effective is herein called the Initial
Registration Statement.
The prospectus in the form in which it appeared in the Initial Registration Statement is
herein called the Base Prospectus. Each preliminary prospectus supplement, if any, to the Base
Prospectus (including the Base Prospectus as so supplemented) that described the Shares and the
offering thereof, that omitted the Rule 430B Information and that was used prior to the filing of
the final prospectus supplement referred to in the following sentence is herein called a
Preliminary Prospectus. Promptly after the execution and delivery of this Agreement, the
Company will prepare and file with the Commission a final prospectus supplement to the Base
Prospectus relating to the Shares and the offering thereof in accordance with the provisions of
Rule 430B and Rule 424(b) of the Rules and Regulations. Such final supplemental form of prospectus
(including the Base Prospectus as so supplemented), in the form filed with the Commission pursuant
to Rule 424(b) under the Securities Act is herein called the Prospectus. The Base Prospectus, as
amended and supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof,
including the final prospectus supplement dated the date hereof, is herein called the Statutory
Prospectus. For purposes of the definition of Statutory Prospectus, Rule 430B Information
contained in a form of prospectus that is deemed retroactively to be a part of the Registration
Statement shall be considered to be included in the Statutory Prospectus as of the actual time that
form of prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act.
The General
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Use Free Writing Prospectus(es) (as defined in Section 1(d) hereof) issued at or prior to the
Applicable Time (as defined in Section 1(d) hereof) and the Statutory Prospectus, all considered
together are hereinafter called the Pricing Prospectus. Any issuer free writing prospectus as
defined in Rule 433 under the Act, relating to the Shares in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Companys records
pursuant to Rule 433(g) under the Act is hereinafter called an Issuer Free Writing Prospectus).
Any reference herein to the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus,
the Statutory Prospectus or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act as of the date of
such prospectus.
For purposes of this Agreement, all references to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System (EDGAR). All references in this Agreement to
financial statements and schedules and other information that is described, contained,
included, set forth or stated in the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information that is
incorporated by reference in or otherwise deemed by the rules and regulations of the Commission to
be a part of or included in the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the subsequent filing of any
document under the Securities Exchange Act of 1934, as amended (the Exchange Act), and which is
deemed to be incorporated by reference therein or otherwise deemed by the Rules and Regulations to
be a part thereof;
(b) At the time of the filing of the Initial Registration Statement with the Commission, the
conditions for use of Form S-3, set forth in the General Instructions thereto, were satisfied. The
Initial Registration Statement was declared effective by the
Commission under the Act on June 7, 2011. The Company has complied, to the Commissions satisfaction, with all requests of the
Commission for additional or supplemental information. No stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto has been issued, and, to the
Companys knowledge, no proceeding for that purpose has been initiated or threatened by the
Commission;
(c) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Stifel, Nicolaus & Company, Incorporated expressly for use
therein, it being understood and agreed that the only such information is that described in Section
10(d) hereof;
(d) For
the purposes of this Agreement, the Applicable
Time is 9:25 a.m. (Eastern time) on
the date of this Agreement. As of the Applicable Time, and as of the Time of Delivery, as the case
may be, neither (i) the Pricing Prospectus nor (ii) any individual Limited Use Free Writing
Prospectus (as defined below), when considered together with the Pricing Prospectus, included or
will include any untrue statement of a material fact or omitted or will omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus (A) does not conflict
with the information contained in the Registration Statement and the Pricing Prospectus, (B) will
not conflict with the information contained in the Prospectus, and (C) as supplemented by
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and taken together with the Pricing Prospectus as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each broadly available road show, if any, when considered together with the Pricing
Prospectus, does not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the representations and warranties in
this Section 1(d) shall not apply to statements or omissions made in the Pricing Prospectus or an
Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Stifel, Nicolaus & Company, Incorporated expressly
for use therein, it being understood and agreed that the only such information is that described in
Section 10(d) hereof. As used in this subsection and elsewhere in this Agreement:
Broadly available road show means a bona fide electronic road show as defined in Rule
433(h)(5) under the Act that has been made available without restriction to any person
General Use Free Writing Prospectus means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as evidenced by its being so identified
on Schedule III to this Agreement.
Limited Use Free Writing Prospectus means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading; provided,
however, that the representations and warranties in this Section 1(e) shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Stifel, Nicolaus & Company, Incorporated expressly
for use therein, it being understood and agreed that the only such information is that described in
Section 10(d) hereof;
(f) Neither the Company nor any of its subsidiaries has, directly or indirectly, distributed,
and none of them will distribute, any offering material in connection with the offering and sale of
the Shares other than the Base Prospectus, any Preliminary Prospectus, the Prospectus and other
materials, if any, permitted under the Act and consistent with Section 6 below. The Company will
file with the Commission all Issuer Free Writing Prospectuses required to be filed in the time and
manner required under Rule 433(d) under the Act;
(g) The Company has filed on a timely basis with the Commission all reports, registration
statements and other documents required by the Act, the Exchange Act, or the rules and regulations
of the Commission promulgated pursuant to the Act or the Exchange Act. All such documents filed by
the Company with the Commission, as of the date they were filed, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Stifel, Nicolaus & Company,
Incorporated expressly for use therein or by the Selling Stockholder expressly for use therein; and
no such documents were filed with the Commission since the Commissions close of business on the
business day
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immediately prior to the date of this Agreement and prior to the execution of this Agreement,
except as set forth on Schedule IV hereto;
(h) Neither the Company nor any of its subsidiaries (i) has sustained since the date of the
latest audited financial statements included in the Pricing Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree and (ii) is
in violation of its charter or by-laws or in default (or with the giving notice or lapse of time
would be in default) under any existing obligation, agreement, covenant or condition contained in
any indenture, loan agreement, mortgage, lease or other agreement or instrument to which it is a
party or by which it is bound or to which its properties is subject, in each case otherwise than as
set forth or contemplated in the Pricing Prospectus, and in each case except for such loss,
interference, default or violation as would not, individually or in the aggregate, have a material
adverse effect on the business, prospects, properties, operations, assets, condition (financial or
otherwise), stockholders equity or results of operations of the Company (a Material Adverse
Effect); and, since the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been (A) any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, other than the expiration of or grants of
stock options to employees of the Company pursuant to the Companys equity incentive plans in the
ordinary course of business and the issuance of shares of Stock upon the exercise of warrants and
stock options by existing security holders of the Company in the ordinary course of business, or
(B) any material adverse change, or any development reasonably expected to result in a material
adverse change, in or affecting the business, prospects, operations, assets, condition (financial
or otherwise) or results of operations of the Company, otherwise than as set forth or contemplated
in the Pricing Prospectus;
(i) Neither the Company nor any of its subsidiaries owns any real property. Each of the
Company and its subsidiaries has good and marketable title to all personal property owned by it, in
each case free and clear of all liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company or any of its
subsidiaries. Any real property and buildings held under lease by the Company or any of its
subsidiaries are held by it under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made of such property
and buildings by the Company or such subsidiary;
(j) The Company and each of its subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with power and authority (corporate and other) to own, lease and operate
its properties and conduct its business as described in the Pricing Prospectus, and is duly
qualified as a foreign corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, except where the failure to be so qualified and in good
standing in any such jurisdiction would not have, individually or in the aggregate, a Material
Adverse Effect;
(k) Neither the Company nor any of its subsidiaries owns, and at the Time of Delivery (as
defined in Section 4(a) hereof), none of them will own, directly or indirectly, any shares of stock
or any other equity or long-term debt securities of any corporation or have any equity interest in
any corporation, firm, partnership, joint venture, association or other entity, other than, with
respect to the Company, 100% of the equity interests of each of its subsidiaries;
(l) The Company has the authorized, and issued and outstanding capital stock as set forth in
the Pricing Prospectus by the incorporation by reference of the Companys Registration Statement on
Form 8-A filed with the SEC on April 19, 2010 (including any amendments or reports filed for the
purpose of updating the description) (the Form 8-A); all of the issued shares of capital stock of
the Company (i) have been duly
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authorized and validly issued, (ii) are fully paid and non-assessable, and (iii) were issued
in compliance with all applicable state and federal securities laws or an exemption thereto; all of
the issued shares of Stock conform to the description of the Stock that is contained in the Pricing
Prospectus and that will be contained in the Prospectus, in each case by the incorporation by
reference of the Form 8-A; and none of the holders of capital stock of the Company are entitled to
receive any liquidation preference payment solely by virtue of the consummation of the offering
contemplated in this Agreement;
(m) The Shares have been duly authorized, were validly issued and are fully paid and
non-assessable and conform to the description of the Stock that is contained in the Pricing
Prospectus and that will be contained in the Prospectus; and no restrictions (other than under federal and state securities laws) upon the
voting or transfer of, any of the Shares or the sale thereof exist or will exist prior to or at the
Time of Delivery with respect to such Shares;
(n) The compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not violate any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of their properties, or conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, or give rise to a
right of termination under, or result in the acceleration of any obligation under any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or affected or to which any of the property or assets of the Company or any of its
subsidiaries is subject or affected, except for such breaches or violations as would not,
individually or in the aggregate, have a Material Adverse Effect, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or
any of its subsidiaries;
(o) No consent, approval, authorization, order, registration, qualification, permit, license,
exemption, filing or notice (each an Authorization) of, from, with or to any court, tribunal,
government, governmental or regulatory authority, self-regulatory organization or body is required
for the issue and sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except (A) the registration of the Shares under the Act; (B) such
Authorizations as may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters; (C) the approval of the Financial
Industry Regulatory Authority, Inc. (FINRA) of the underwriting terms and arrangements of the
offering of the Shares; and (D) such other Authorizations the absence of which would not,
individually or in the aggregate, have a Material Adverse Effect; and no event has occurred, nor is
any proceeding, to the best of the knowledge of the Company, pending or threatened, that allows or
results in, or after notice or lapse of time or both would allow or result in, revocation,
suspension, termination or invalidation of any such Authorization or any other impairment of the
rights of the holder or maker of any such Authorization;
(p) The Company has full corporate power and authority to enter into this Agreement. This
Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid
and binding agreement of the Company, enforceable against the Company in accordance with the terms
hereof. All actions (including those of stockholders) necessary for the Company to consummate the
transactions contemplated in this Agreement have been taken and are in effect;
(q) The conditions for use of Form S-3, set forth in the General Instructions thereto, have
been satisfied. Each of the Registration Statement and any post-effective amendment thereto has
become effective under the Act and no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued under the Act and no proceedings
for that purpose have been
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instituted or are pending or, to the knowledge of the Company, are threatened by the
Commission, and any request on the part of the Commission for additional information has been
complied with;
(r) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of
Incorporation or By-laws or other organizational documents or (B) in default in the performance or
observance of any material obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or any of its properties may be bound or
affected or any indenture, mortgage, deed of trust, loan agreement, lease or other agreement,
except for such violations or defaults that would not, individually or in the aggregate, have a
Material Adverse Effect. Each of the Company and its subsidiaries has in effect controls and
procedures for ensuring compliance in all material respects with any agreement or instrument to
which it is a party or by which it or any of its properties may be bound or affected or any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement, except for such
agreements the breach of which would not, individually or in the aggregate, have a Material Adverse
Effect;
(s) The statements that are set forth in the Pricing Prospectus, and that will be set forth in
the Prospectus, describing the Companys capital stock by the incorporation by reference of the
Form 8-A, insofar as they purport to constitute a summary of the terms of the Stock, and under the
caption Underwriting, insofar as they purport to describe the provisions of the laws and
documents referred to therein, are (in the case of the Pricing Prospectus) or will be (in the case
of the Prospectus), as the case may be, accurate, complete and fair;
(t) Except as is disclosed in the Pricing Prospectus and will be disclosed in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or such subsidiary, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, or would materially
and adversely affect the ability of the Company or such subsidiary to perform its obligations under
this Agreement, or which are otherwise material in the context of the sale of the Shares; and to
the best of the knowledge of the Company and each of its subsidiaries, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(u) Except as is disclosed in the Pricing Prospectus, and will be disclosed in the Prospectus,
(i) the Company owns or possesses adequate rights to use all trademarks, trade names, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), licenses, approvals and governmental
authorizations to conduct its business as now conducted and none of the foregoing intellectual
property rights owned or possessed by the Company which is material to the Company or any of its
subsidiaries is invalid or unenforceable; to the Companys knowledge, neither the Company nor any
of its subsidiaries is infringing any third partys patents or patent applications; neither the
Company nor any of its subsidiaries is infringing any third partys trademarks, trade name rights,
inventions, copyrights, licenses, trade secrets or other similar rights of others, (iii) neither
the Company nor any of its subsidiaries is engaging in any improper use of data obtained by it from
customers or other third parties or through its own survey collection efforts, (iv) neither the
Company nor any of its subsidiaries is aware of any infringement, misappropriation or violation by
others of, or conflict by others with rights of the Company or any of its subsidiaries with respect
to, any of the foregoing intellectual property rights, where such infringement would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, and (v) there is no
claim being made against the Company or any of its subsidiaries, or to the best of the knowledge of
the Company and each of its subsidiaries, any employee of the Company or any of its subsidiaries,
regarding trademark, trade name, patent, inventions, copyright, license, trade secret or other
infringement or improper use of any data obtained by the Company or any of its subsidiaries from
third parties which would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Neither the Company nor any of its subsidiaries has any patents or patent
applications;
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(v) All current employees, consultants and contractors of the Company and each of its
subsidiaries have executed written instruments with the Company that assign to the Company all
rights, title and interest in and to any and all (i) inventions, improvements, discoveries,
writings and other works of authorship, and information relating to the business of the Company and
each of its subsidiaries or any of the products or services being researched, developed or sold by
the Company or any of its subsidiaries or that may be used with any such products or services and
(ii) any intellectual property and/or proprietary rights related thereto, including but not limited
to trademarks, trade names, patents, patent applications, inventions, copyrights and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures). To the knowledge of the Company and each of its subsidiaries,
all former employees, consultants and contractors of the Company and each of its subsidiaries have
executed written instruments with the Company that assign to the Company all rights, title and
interest in and to any and all (i) inventions, improvements, discoveries, writings and other works
of authorship, and information relating to the business of the Company and each of its subsidiaries
or any of the products or services being researched, developed or sold by the Company and its
subsidiaries or that may be used with any such products or services and (ii) any intellectual
property and/or proprietary rights related thereto, including but not limited to trademarks, trade
names, patents, patent applications, inventions, copyrights and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), except to the extent that failure to execute such written instruments would not have a
Material Adverse Effect;
(w) Except as is disclosed in the Pricing Prospectus and will be disclosed in the Prospectus,
there are no contracts, agreements or understandings between the Company or any of its subsidiaries
and any person that materially restrict the Companys ability to conduct its business as described
in the Pricing Prospectus;
(x) The Company and each of its subsidiaries possesses all certificates, certifications,
registrations, notifications, orders, licenses, authorizations, approvals and permits
(collectively, Permits) issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct its business and such Permits are valid and in full force and
effect, except for Permits where the failure to possess, or the invalidity of which, individually
or in the aggregate, would not have a Material Adverse Effect. The Company and each of its
subsidiaries is in compliance in all respects with the terms and conditions of such Permits, except
where the failure to comply would not have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Permit which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(y) The Company and each of its subsidiaries is insured against such losses and risks and in
such amounts as each of the Company and such subsidiaries reasonably believes are prudent and
customary in the business in which it is engaged; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have a Material Adverse Effect;
(z) The Company and each of its subsidiaries (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(Environmental Laws), (ii) has received all Permits required of it under applicable Environmental
Laws to conduct its business and (iii) is in compliance in all respects with any such Permit,
except where such noncompliance with Environmental Laws, failure to receive required Permits, or
failure to comply with the terms and conditions of such Permits would not have, individually or in
the aggregate, a Material Adverse Effect;
7
(aa) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Permit, any related constraints on operating activities
and any potential liabilities to third parties) which would, individually or in the aggregate, have
a Material Adverse Effect;
(bb) The Company and each of its subsidiaries has filed all federal, state, local and foreign
tax returns which have been required to be filed and has paid or made provision to pay all taxes
and assessments received by it to the extent that such taxes or assessments have become due, except
where the failure to file such returns or pay, or make provision to pay, all such taxes and
assessments would not have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has any tax deficiency which has been or, to the best of the knowledge of the Company
and its subsidiaries, might be asserted or threatened against it which would reasonably be expected
to have a Material Adverse Effect;
(cc) The liabilities of the Company and each of its subsidiaries to their customers are as set
forth in the Companys standard form of Master Services Agreement and in the Prospectus, except as
would not, individually or in the aggregate, have a Material Adverse Effect;
(dd) The Company is not and, after giving effect to the offering and sale of the Shares and
the application of the proceeds thereof, will not be an investment company, as such term is
defined in the Investment Company Act of 1940, as amended;
(ee) At the time of filing the Initial Registration Statement, the Company was not an
ineligible issuer, as defined in Rule 405 under the Act;
(ff) Except as disclosed in the Pricing Prospectus, there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and any person granting such person
the right to require the Company to file a registration statement under the Act with respect to any
securities of the Company or its subsidiaries or to require the Company to include such securities
with the Shares registered pursuant to the Initial Registration Statement other than as have been
waived in writing in connection with the offering contemplated hereby;
(gg) Grant Thornton LLP, who have certified certain financial statements of the Company, are
independent public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(hh) The financial statements of the Company (including all notes and schedules thereto)
included in the Registration Statement, the Pricing Prospectus and Prospectus comply in all
material respects with the requirements of the Act and the Exchange Act and present fairly the
financial position of the Company at the dates indicated and the statement of operations,
stockholders equity and cash flows of the Company for the periods specified are in conformity with
generally accepted accounting principles, consistently applied throughout the periods involved; and
the selected financial data that are included in the Registration Statement and the Pricing
Prospectus and that will be included in the Prospectus, (i) are, in the case of the financial
information for the years ended December 31, 2008, December 31, 2009 and December 31, 2010, derived
from the consolidated financial statements that are set forth in the Registration Statement and the
Pricing Prospectus and that will be set forth in the Prospectus, (ii) are, in the case of financial
information for the years ended December 31, 2006 and December 31, 2007, complete and accurate in
all respects and fairly present the financial condition of the Company at the respective dates
thereof and the results of the Companys operations for the periods then ended and were prepared in
accordance with the books and records of the Company in conformity with generally accepted
accounting principles, consistently applied during the periods covered thereby except for the
omission of footnotes and normal year-end adjustments which are not, individually and in the
aggregate, material. All financial statements or schedules of the Company which are required by
the Act or
8
the rules and regulations of the Commission thereunder to be included in the Registration
Statement, the Preliminary Prospectus or the Prospectus have been or, in the case of the
Prospectus, will be so included;
(ii) The Company is fully compliant in all respects with applicable laws, rules and
regulations of the Commission regarding internal control over financial reporting (as such term is
defined in Rule 13a-15(f) under the Exchange Act). Except as is disclosed in the Pricing
Prospectus and will be disclosed in the Prospectus, the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(jj) Since the date of the latest audited financial statements of the Company included in the
Pricing Prospectus, there has been no change in the internal control over financial reporting of
the Company or any of its subsidiaries that has materially diminished, or is reasonably likely to
materially diminish, the effectiveness of the internal control over financial reporting of the
Company or any of its subsidiaries (other than as set forth in the Pricing Prospectus);
(kk) The Company and each of its subsidiaries maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of
the Exchange Act; such disclosure controls and procedures have been designed to ensure that
material information relating to the Company and each of its subsidiaries is made known to the
Companys principal executive officer and principal financial officer by others within the Company;
and such disclosure controls and procedures are effective;
(ll) The Company and each of its subsidiaries is in compliance with all currently effective
provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder
that are applicable, or will be applicable to the Company as of the Time of Delivery;
(mm) There are no off-balance sheet arrangements, outstanding guarantees or other contingent
obligations of the Company or any of its subsidiaries that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
(nn) The Companys Chief Executive Officer and Chief Financial Officer have reviewed and
agreed with the selection, application and disclosure of critical accounting policies and have
consulted with the Companys independent registered public accounting firm with regard to such
disclosure;
(oo) No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries, on the other hand, which is required to be described in the
Registration Statement, the Pricing Prospectus and the Prospectus and which is not so described.
There are no outstanding loans, advances or guarantees of indebtedness by the Company or any of its
subsidiaries to or for the benefit of any of the executive officers or directors of the Company or
any of its subsidiaries;
(pp) To the knowledge of the Company and its subsidiaries, no person associated with or acting
on behalf of the Company, including without limitation any director, officer, agent or employee of
the Company or any of its subsidiaries has, directly or indirectly, while acting on behalf of the
Company or any of its subsidiaries (A) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (B) made any unlawful
payment to foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds, (C) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended or (D) made any other unlawful payment;
9
(qq) Except as contemplated by this Agreement and as is disclosed in the Pricing Prospectus
and will be disclosed in the Prospectus, no person is entitled to receive from the Company or any
of its subsidiaries a brokerage commission, finders fee or other like payment in connection with
the transactions contemplated herein;
(rr) Neither the Company nor any of its subsidiaries conducts business with the government of,
or with any person located in any country in a manner that violates in any material respect any of
the economic sanctions programs or similar sanctions-related measures of the United States as
administered by the United States Treasury Departments Office of Foreign Assets Control;
(ss) There is no document, contract, permit or instrument of a character required to be
described in the Initial Registration Statement, the Pricing Prospectus or the Prospectus or to be
filed as an exhibit to the Initial Registration Statement which is not (or, in the case of the
Prospectus, will not be) described or filed as required. All such contracts described (or, in the
case of the Prospectus, to be described) in the Initial Registration Statement, the Pricing
Prospectus or the Prospectus or filed as exhibits to the Initial Registration Statement to which
the Company or any of its subsidiaries is a party have been duly authorized, executed and delivered
by the Company or such subsidiary, constitute valid and binding agreements of the Company or such
subsidiary and are enforceable against and by the Company or such subsidiary in accordance with the
terms thereof;
(tt) Except for stock issuances disclosed in the Initial Registration Statement, the Company
has not sold or issued any shares of Stock during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A, or Regulations D or S, under the Act, other
than any shares of Stock issued upon exercise of warrants and stock options granted pursuant to the
Companys equity incentive plans, which warrants and equity incentive plans are described in the
Pricing Prospectus and will be described in the Prospectus;
(uu) Statistical, industry-related and market-related data included in the Initial
Registration Statement, the Pricing Prospectus and the Prospectus are (or, in the case of the
Prospectus, will be) based on or derived from sources which the Company reasonably and in good
faith believes are reliable and accurate in all material respects;
(vv) Neither the Company nor any of its subsidiaries has distributed, and none of them will
distribute prior to the Time of Delivery and completion of the distribution of the Shares, any
offering material in connection with the offering and sale of the Shares other than any Preliminary
Prospectuses, the Prospectus, the Registration Statement and Issuer Free Writing Prospectuses
listed in Schedule III hereto;
(ww) None of the Company, any of its subsidiaries or any of their directors, officers or
controlling persons has taken, directly or indirectly, any action designed, or which would
reasonably be expected, to cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any security of the Company;
(xx) (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (ERISA), for which the Company or any member
of its Controlled Group (defined as any organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended
(the Code)) would have any liability (each, a Plan) has been maintained in material compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan
excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each
Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no
10
material accumulated funding deficiency as defined in Section 412 of the Code, whether or
not waived, has occurred or is reasonably expected to occur; (iv) the fair market value of the
assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined
based on those assumptions used to fund such Plan); (v) no reportable event (within the meaning
of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any
material liability under Title IV of ERISA (other than contributions to the Plan or premiums to the
PBGC, in the ordinary course and without default) in respect of a Plan (including a multiemployer
plan, within the meaning of Section 4001(a)(3) of ERISA);
(yy) Neither the Company nor any of its subsidiaries does business with the government of Cuba
or with any person located in Cuba within the meaning of Section 517.075, Florida Statutes;
(zz) Copies of the minute books of the Company have been furnished to counsel for the
Underwriters, and such books (i) contain all minutes and written actions of the board of directors
(including each committee thereof) of the Company prepared since the time of its incorporation and
(ii) accurately reflect all matters referred to in such minutes;
(aaa) [Intentionally left blank]
(bbb) The Company has no subsidiaries other than SPS Commerce Hong Kong Limited and SPS
International, Inc.; and
(ccc) No forward-looking statement (within the meaning of Section 27A of the Securities Act
and Section 21E of the Exchange Act) made by the Company or any of its officers or directors
contained in the Registration Statement, the Prospectus or the Pricing Prospectus, or made
available to the public generally since April 22, 2010, has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
2. The Selling Stockholder represents and warrants to, and agrees with, each of the
Underwriters that:
(a) All consents, approvals, authorizations and orders necessary for the execution and
delivery by the Selling Stockholder of this Agreement and the Custody Agreement hereinafter
referred to, and for the sale and delivery of the Shares to be sold by the Selling Stockholder
hereunder, have been obtained; and the Selling Stockholder has full right, power and authority to
enter into this Agreement and the Custody Agreement to make the representations, warranties and
agreements hereunder and thereunder and to sell, assign, transfer and deliver the Shares to be sold
by the Selling Stockholder hereunder;
(b) The sale of the Shares to be sold by the Selling Stockholder hereunder and the compliance
by the Selling Stockholder with all of the provisions of this Agreement and the Custody Agreement
and the consummation of the transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, or give
rise to a right of termination under, or result in the acceleration of any obligations under, any
statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Selling Stockholder is a party or by which the Selling Stockholder is bound or affected
or to which any of the property or assets of the Selling Stockholder is subject or affected, nor
will such action result in any violation of the provisions of the Partnership Agreement of the
Selling Stockholder, or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Selling Stockholder or the property of the Selling
Stockholder, except for such breaches, defaults or violations that would not have an adverse effect
on the ability of the Selling Stockholder to perform its obligations under this Agreement;
11
(c) The Selling Stockholder has, and immediately prior to the Time of Delivery (as defined in
Section 4(a) hereof) the Selling Stockholder will have, good and valid title to the Shares to be
sold by the Selling Stockholder hereunder, free and clear of all liens, encumbrances, equities or
claims (other than pursuant to the Custody Agreement); and, upon delivery of the Shares and payment
therefor pursuant hereto, good and valid title to the Shares, free and clear of all liens,
encumbrances, equities or claims (other than pursuant to the Custody Agreement), will pass to the
several Underwriters;
(d) The Selling Stockholder has not taken and will not take, directly or indirectly, any
action which is designed to or which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(e) The Selling Stockholder is not prompted by any material nonpublic information concerning
the Company or any of its subsidiaries which is not set forth in the Pricing Prospectus to sell its
Shares pursuant to this Agreement;
(f) To the extent that any statements or omissions made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance
upon and in conformity with written information furnished to the Company by the Selling Stockholder
expressly for use therein, the Preliminary Prospectus and the Registration Statement did not, and
the Prospectus and any further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as the case may be, will
not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading based on the written
information furnished to the Company by the Selling Stockholder expressly for use therein. The
Company and the Underwriters acknowledge that the information provided by the Selling Stockholder
in connection with preparing the response to Item 7 of Form S-3 constitute the only written
information furnished to the Company by the Selling Stockholder for use in the Registration
Statement, any Preliminary Prospectus, the Prospectus or amendment thereto for purposes of this
Agreement;
(g) Each broadly available road show, if any, when considered together with the Pricing
Prospectus, does not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the representations and warranties set forth in
this Section 2(g) are limited to statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by the Selling Stockholder expressly for use in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto as set forth in Section 2(f);
(h) In order to document the Underwriters compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, the Selling Stockholder will deliver to you prior to or at the Time of
Delivery (as defined in Section 4(a) hereof) a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(i) Certificates in negotiable form representing all of the Shares to be sold by the Selling
Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore
furnished to you (the Custody Agreement), duly executed and delivered by the Selling Stockholder
to the Companys transfer agent, as custodian (the Custodian); and
(j) The Shares represented by the certificates held in custody for the Selling Stockholder
under the Custody Agreement are for the benefit and coupled with and subject to the interests of
the Underwriters, the Custodian and the Company; the arrangements made by the Selling Stockholder
for such
12
custody are to that extent irrevocable; the obligations of the Selling Stockholder hereunder
shall not be terminated by operation of law, whether by the dissolution of the Selling
Stockholders partnership or by the occurrence of any other event; or if the Selling Stockholders
partnership should be dissolved, or if any other such event should occur, before the delivery of
the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of
the Selling Stockholder in accordance with the terms and conditions of this Agreement and of the
Custody Agreements.
3. Subject to the terms and conditions herein set forth, the Selling Stockholder agrees to
sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Selling Stockholder, at a purchase price per share
of $16.00, the number of
Shares set forth opposite its name in Schedule II hereto.
4. Payment and Delivery.
(a) The Shares to be purchased by each Underwriter hereunder will be represented by one or
more definitive global Shares in book-entry form which will be deposited by or on behalf of the
Selling Stockholder with the Depository Trust Company (DTC) or its designated custodian. The
Custodian will deliver the Shares to Stifel, Nicolaus & Company, Incorporated, for the account of
each Underwriter, against payment by or on behalf of each such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified by the Selling
Stockholder, by causing DTC to credit the Shares to the account of Stifel, Nicolaus & Company,
Incorporated at DTC. The time and date of such delivery and payment shall be, with respect to the
Shares, 10:00 a.m., New York time, on June 14, 2011, or such other time and date as Stifel,
Nicolaus & Company, Incorporated and the Selling Stockholder may agree upon in writing. Such time
and date for delivery of the Shares is herein called the Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 9 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 9(q) hereof, will be delivered at the
offices of Goodwin Procter LLP, 53 State Street, Exchange Place, Boston, Massachusetts 02109 (the
Closing Location), and the Shares will be delivered at the office of DTC or its designated
custodian, all at the Time of Delivery. A meeting will be held at the Closing Location at 5:00
p.m., New York City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this Agreement, New York
Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. Each of the Company and the Selling Stockholder acknowledges and agrees that (i) the
purchase and sale of the Shares pursuant to this Agreement is an arms-length commercial
transaction between the Company and the Selling Stockholder, on the one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the
Company or the Selling Stockholder, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company or the Selling Stockholder with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company or the Selling Stockholder on other matters) or any
other obligation to the Company or the Selling Stockholder except the obligations expressly set
forth in this Agreement, (iv) the Underwriters and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Company or the
Selling Stockholder and have no obligation to disclose or account to the Company or the Selling
Stockholder for any of such differing interests and (v) each of the Company and the Selling
Stockholder has consulted its own legal and financial advisors to the extent it deemed appropriate.
Each of the Company and the Selling Stockholder agrees that it will not claim that the
13
Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes
a fiduciary or similar duty to the Company or the Selling Stockholder, in connection with such
transaction or the process leading thereto.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commissions close of business on the second
business day following the execution and delivery of this Agreement; to make no further amendment
or any supplement to the Registration Statement or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice
thereof, of the happening of any event during the Prospectus Delivery Period (as defined in Section
6(c)) that in the judgment of the Company makes any statement made in the Registration Statement,
the Preliminary Prospectus or the Prospectus untrue or that requires the making of any changes in
the Registration Statement, the Preliminary Prospectus or the Prospectus in order to make the
statements therein, in the light of the circumstances in which they are made, not misleading; to
file promptly all material required to be filed by the Company with the Commission pursuant to Rule
433(d) under the Act; to advise you, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or other prospectus in respect of the Shares or to the best of the knowledge
of the Company the initiation or threatening of any proceeding for that purpose, of the suspension
of the qualification of the Shares for offering or sale in any jurisdiction, or to the best of the
knowledge of the Company the initiation or threatening of any proceeding for that purpose, of the
receipt of any notification with respect to the suspension of the Shares for quotation on The
NASDAQ Global Market (Nasdaq) or to the best of the knowledge of the Company the initiation or
threatening of any proceeding for that purpose or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for additional information or
any other purpose; and, in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such order. If the
Company has omitted any information from the Registration Statement pursuant to Rule 430B, the
Company will comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430B and notify Stifel, Nicolaus & Company, Incorporated promptly of all such
filings;
(b) To promptly take such action as you may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) On the second New York Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at
any time prior to the expiration of nine months after the time of issue of the Prospectus (the
Prospectus Delivery Period) in connection with the offering or sale of the Shares and if at such
time any events shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
14
Prospectus in order to comply with the Act, to notify you and upon your request prepare and
duly file with the Commission an appropriate supplement or amendment to the Prospectus which will
correct such statement or omission or effect such compliance and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the Prospectus, and in
case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine
months or more after the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies
as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earning statement of the Company (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including Rule 158 of the Act);
(e) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus (the Initial Lock-Up Period), not to offer, sell,
pledge, contract to sell or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the right to receive,
Stock or any such substantially similar securities (other than pursuant to employee stock option
plans existing on, or upon the exercise of warrants or the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement), without your prior written
consent. Notwithstanding the foregoing, if (1) during the last 17 days of the Initial Lock-Up
Period, the Company releases earnings results or announces material news or a material event or (2)
prior to the expiration of the Initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period following the last day of the Initial Lock-Up Period,
then in each case the Initial Lock-Up Period will be automatically extended until the expiration of
the 18-day period beginning on the date of release of the earnings results or the announcement of
the material news or material event, as applicable, unless Stifel, Nicolaus & Company, Incorporated
waives, in writing, such extension; the Company will provide Stifel, Nicolaus & Company,
Incorporated with prior notice of any such announcement that gives rise to an extension of the
Initial Lock-Up Period. Stifel, Nicolaus & Company, Incorporated will provide the Company with
written notice of any extension of the Initial Lock-Up Period; provided, however, that failure to
provide such notice shall not affect the effectiveness of such extension;
(f) Unless otherwise publicly available in electronic format on the website of the Company or
the Commission, to furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of income, stockholders equity and
cash flows of the Company certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement), to make available to its
stockholders consolidated summary financial information of the Company and its subsidiaries for
such quarter in reasonable detail;
(g) During a period of five years from the effective date of the Registration Statement,
unless otherwise publicly available in electronic format on the website of the Company or the
Commission, to furnish to you copies of all reports or other communications (financial or other)
furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a consolidated basis to
the
15
extent the accounts of the Company are consolidated in reports furnished to its stockholders
generally or to the Commission);
(h) [Intentionally left blank];
(i) During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the
Commission and Nasdaq all reports and documents required to be filed under the Exchange Act;
(j) [Intentionally left blank];
(k) To refrain from taking at any time, directly or indirectly, any action designed or that
might reasonably be expected to cause or result in, or that will constitute, stabilization of the
price of the shares of any security of the Company;
(l) Except as otherwise required by law (as determined in the reasonable judgment of the
Company and its counsel), prior to the Time of Delivery, to refrain from issuing any press release,
directly or indirectly, or holding any press conference, in each case with respect to the Companys
financial condition, earnings, business, operations or prospects, or the offering of the Shares,
without the prior written consent of Stifel, Nicolaus & Company, Incorporated; and
(m) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Companys trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Shares (the License); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.
7. (a) The Company represents and agrees that, without the prior written consent of Stifel,
Nicolaus & Company, Incorporated, it has not made and will not make any offer relating to the
Shares that would constitute a free writing prospectus as defined in Rule 405 under the Act; each
Underwriter represents and agrees that, without the prior consent of the Company and Stifel,
Nicolaus & Company, Incorporated, it has not made and will not make any offer relating to the
Shares that would constitute a free writing prospectus; any such free writing prospectus the use of
which has been consented to by the Company and Stifel, Nicolaus & Company, Incorporated is listed
on Schedule III hereto.
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show.
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Stifel, Nicolaus &
Company, Incorporated and, if requested by Stifel, Nicolaus & Company, Incorporated, will prepare
and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or omissions in an Issuer Free
Writing Prospectus made in reliance upon and in conformity with information furnished in writing to
the Company by an
16
Underwriter through Stifel, Nicolaus & Company, Incorporated expressly for use therein, it
being understood and agreed that the only such information is that described in Section 10(d)
hereof.
8. Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and the Selling Stockholder covenant and agree with one
another and with the several Underwriters that (a) the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Companys counsel and accountants in
connection with the registration of the Shares under the Act and all other expenses in connection
with the preparation, printing, reproduction and filing of the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost, other than the fees of counsel to the Underwriters, of printing or
producing this Agreement, the Custody Agreement, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 6(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) the filing fees of the Commission and all expenses
associated with transmitted documents to the Commission in connection with the offering of the
Shares; (v) the filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing the review by FINRA of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and charges of the transfer
agent or registrar for the Stock, (viii) costs and expenses of the Company relating to investor
presentations or any road show undertaken in connection with the marketing of the Shares and (ix)
all other costs and expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section; and (b) the Selling Stockholder will pay or
cause to be paid all costs and expenses incident to the performance of the Selling Stockholders
obligations hereunder which are not otherwise specifically provided for in this Section, including
(i) any fees and expenses of counsel for the Selling Stockholder and the Custodian, and (ii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by the Selling
Stockholder to the Underwriters hereunder. In connection with clause (b)(ii) of the preceding
sentence, Stifel, Nicolaus & Company, Incorporated agrees to pay New York State stock transfer tax,
and the Selling Stockholder agrees to reimburse Stifel, Nicolaus & Company, Incorporated for
associated carrying costs if such tax payment is not rebated on the day of payment and for any
portion of such tax payment not rebated and to comply with applicable tax laws. It is understood,
however, that the Company shall pay, or reimburse the Selling Stockholder for, any fees and
expenses otherwise payable under subsection (a) hereof. It is further understood, however, that
the Company shall bear, and the Selling Stockholder shall not be required to pay or to reimburse
the Company for, the cost of any other matters not directly relating to the sale and purchase of
the Shares pursuant to this Agreement, and that, except as provided in this Section, and Sections
10 and 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Shares to be delivered at the Time
of Delivery, shall be subject to the following conditions:
(a) All representations and warranties and other statements of the Company and the Selling
Stockholder herein are, at and as of the Time of Delivery, true and correct;
(b) The Company and the Selling Stockholder shall have performed and complied with all of its
and their covenants, agreements and obligations hereunder;
(c) If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, is required under the Act or the rules and regulations of the Commission
thereunder, the Company shall have filed the Prospectus (or such amendment or supplement) or such
Issuer Free Writing
17
Prospectus with the Commission in the manner and within the time period so required (without
reliance on Rule 424(b)(8) or Rule 164(b)); all material required to be filed by the Company
pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall, to the best of the knowledge of the Company, have been initiated
or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus
or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(d) Goodwin Procter LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated the Time of Delivery, in form and substance reasonably
acceptable to you;
(e) Faegre & Benson LLP, counsel for the Company, shall have furnished to you their written
opinion and letter, dated the Time of Delivery, in the forms attached as Annex I(a) hereto;
(f) The counsel for the Selling Stockholder, as indicated in Schedule II hereto, shall
have furnished to you its written opinion with respect to the Selling Stockholder (a draft of such
opinion is attached as Annex I(b) hereto), dated the Time of Delivery, in form and
substance satisfactory to you;
(g) Concurrently with the execution of this Agreement and also at the Time of Delivery, Grant
Thornton LLP shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance reasonably satisfactory to you, containing statements and
information of the type customarily included in accountants comfort letters to underwriters with
respect to the financial statements and certain financial information contained in the Registration
Statement and the Prospectus and shall use a cut off date no more than three business days prior
to the Time of Delivery;
(h) (i) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Pricing Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as
of which information is given in the Pricing Prospectus there shall not have been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the business, operations, management,
assets, condition (financial or otherwise) or results of operations of the Company or any of its
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of Stifel, Nicolaus &
Company, Incorporated so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered at the Time of Delivery on
the terms and in the manner contemplated in the Pricing Prospectus;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, the NASDAQ Stock Market or the NYSE
Amex or in the over-the-counter market shall have been suspended or minimum or maximum prices or
maximum ranges for prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or
a material disruption has occurred in commercial banking or securities settlement or clearance
services in the United States, (iii) (A) the United States shall have become engaged in
hostilities, or the subject of an act of terrorism, there shall have been a material escalation in
hostilities involving the United States or there shall have been a declaration of a national
emergency or war by the United States or (B) there shall have occurred such a material adverse
change
18
in general economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to make it with respect
to either (A) or (B), in the sole judgment of Stifel, Nicolaus & Company, Incorporated,
impracticable or inadvisable to proceed with the sale or delivery of the Shares;
(j) The Shares to be sold at the Time of Delivery shall have been duly listed on Nasdaq;
(k) [Intentionally left blank]
(l) The Company shall have complied with the provisions of Section 6(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(m) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you certifying as to the accuracy of the
representations and warranties of the Company and the Selling Stockholder herein at and as of the
Time of Delivery, as to the performance by the Company of all of its respective obligations
hereunder to be performed at or prior to the Time of Delivery, and as to such other matters as you
may reasonably request;
(n) The Selling Stockholder shall have furnished or caused to be furnished to you at the Time
of Delivery a certificate of the officer of the Selling Stockholder substantially in the form
attached hereto as Annex II;
(o) FINRA shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements;
(p) A certificate signed by the Secretary or Assistant Secretary of the Company dated the Time
of Delivery certifying: (i) that the By-Laws and Amended and Restated Certificate of Incorporation
of the Company are true and complete, have not been modified and are in full force and effect, (ii)
that the resolutions relating to the offering contemplated by this Agreement are in full force and
effect and have not been modified, (iii) all correspondence between the Company or its counsel and
the Commission (attached to the certificate) and (iv) as to the incumbency of the officers of the
Company; and
(q) At the Time of Delivery, the Underwriters and counsel for the Underwriters shall have
received all such information, documents and opinions as they may reasonably request for the
purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated herein or
in order to evidence the accuracy of any of the representations and warranties or the satisfaction
of any of the conditions or agreements herein contained.
10. (a) The Company will indemnify and hold harmless each Underwriter, and each of their
respective directors and officers, and any person who controls or is alleged to control an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based in whole or in part upon (i) an untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances under which they are made, or (ii) any
inaccuracy in the representations and warranties of the Company contained herein or any failure of
the Company to perform its obligations hereunder or under the law in connection with the
transactions contemplated by this Agreement, and will reimburse each Underwriter for
19
any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to any
Underwriter to the extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through Stifel,
Nicolaus & Company, Incorporated expressly for use therein, it being understood and agreed that the
only such information is that described in Section 10(d) hereof and provided,
further, that the Company shall not be liable in any such case to any Underwriter with
respect to any untrue statement or omission of a material fact if, (i) prior to the Time of
Delivery the Company shall have notified Stifel, Nicolaus & Company, Incorporated in writing in
accordance with Section 14 hereof that the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus contains an untrue statement or alleged untrue statement of material fact or
omits or allegedly omits to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) such untrue statement, alleged untrue
statement, omission or alleged omission of a material fact was corrected in an amendment or
supplement and such amendment or supplement was provided to the Underwriters prior to the
Applicable Time, and (iii) the information contained in such corrected disclosure was not conveyed
at or prior to the Applicable Time.
(b) [Intentionally left blank]
(c) The Selling Stockholder will indemnify and hold harmless the Company, each Underwriter and
each of their respective directors and officers, and any person who controls or is alleged to
control an Underwriter or the Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which the Company or such
Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based in whole or in part upon
(i) an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus or the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in light of the circumstances under which they are
made, or (ii) any inaccuracy in the representations and warranties of the Selling Stockholder
contained herein or any failure of the Selling Stockholder to perform its obligations hereunder or
under law in connection with the transactions contemplated by this Agreement, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with information relating to the Selling Stockholder
furnished to the Company in writing by the Selling Stockholder or counsel therefor expressly for
use therein; and will reimburse the Company and each Underwriter for any legal or other expenses
reasonably incurred by the Company or such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred. Notwithstanding the foregoing,
the Selling Stockholder shall not be liable in any such case to the Company or any Underwriter with
respect to any untrue statement or omission of a material fact if, (i) prior to the Time of
Delivery the Selling Stockholder shall have notified the Company and Stifel, Nicolaus & Company,
Incorporated in writing in accordance with Section 14 hereof that the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus contains an untrue statement or alleged untrue
statement of material fact or omits or allegedly omits to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, (ii) such untrue
statement, alleged untrue statement, omission or alleged omission of a material fact was corrected
in an amendment or supplement and such amendment or supplement was provided to the Company and the
Underwriters prior to the Applicable Time,
20
and (iii) the information contained in such corrected disclosure was not conveyed at or prior
to the Applicable Time.
(d) Each Underwriter will indemnify and hold harmless the Company, the Selling Stockholder and
each of their respective directors and officers, and any person who controls or is alleged to
control the Company or the Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the
Company or the Selling Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to the Company by such
Underwriter through Stifel, Nicolaus & Company, Incorporated expressly for use therein; and will
reimburse the Company and the Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or the Selling Stockholder in connection with investigating or defending
any such action or claim as such expenses are incurred. The Company and the Selling Stockholder
acknowledge that (i) the statements set forth in the section titled Commissions and Discounts
under the heading Underwriting in the Registration Statement, Preliminary Prospectus, Pricing
Prospectus and the Prospectus and (ii) the list of the number of Shares purchased by each
Underwriter set forth under the heading Underwriting in the Registration Statement, Preliminary
Prospectus, Pricing Prospectus and the Prospectus constitute the only information relating to any
Underwriter furnished in writing to the Company by Stifel, Nicolaus & Company, Incorporated on
behalf of the Underwriters expressly for inclusion in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(e) Promptly after receipt by an indemnified party under subsection (a), (c) or (d) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission to so notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation; provided, however that the reasonable
fees, disbursements and other charges of counsel will be at the expense of the indemnifying party
or parties if (i) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (ii) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (iii) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the indemnified party), or (iv) the
indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time
21
after receiving notice of the commencement of the actions. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of
more than one separate firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(f) If the indemnification provided for in this Section 10 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a), (c) or (d) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the notice required under
subsection (e) above, then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and the Selling Stockholder on the one hand and
the Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholder bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the Selling Stockholder on
the one hand or the Underwriters on the other and the parties relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company, the
Selling Stockholder and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (f) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this subsection
(f). The amount paid or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this subsection (f) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (f), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters obligation in this subsection (f)
to contribute are several in proportion to their respective underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Stockholder under this Section 10 shall be
in addition to any liability which the Company and the Selling Stockholder may otherwise have and
shall
22
extend, upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the Underwriters under this
Section 10 shall be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and director of the
Company (including any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company) and to each person, if any, who controls the Company
or the Selling Stockholder within the meaning of the Act.
(h) The liability of the Selling Stockholder under the indemnity and contribution provisions
of this Section 10 shall be limited to an amount equal to the public offering price of the Shares
sold by the Selling Stockholder, less the underwriting discount, as set forth on the front cover
page of the Prospectus.
11. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder at the Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company and the Selling Stockholder shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective prescribed periods,
you notify the Company and the Selling Stockholder that you have so arranged for the purchase of
such Shares, or the Company and the Selling Stockholder notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Stockholder shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term Underwriter as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter by you and the Company and the Selling Stockholder as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares to be purchased at the Time of Delivery, then the Company and
the Selling Stockholder shall have the right to require you to purchase the number of Shares which
you agreed to purchase hereunder at the Time of Delivery and, in addition, to require you to
purchase your pro rata share (based on the number of Shares which you agreed to purchase hereunder)
of the Shares of such defaulting Underwriter for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter by you and the Company and the Selling Stockholder as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all of the Shares to be purchased at the Time of Delivery, or if the Company and the
Selling Stockholder shall not exercise the right described in subsection (b) above to require you
to purchase Shares of a defaulting Underwriter, then this Agreement shall thereupon terminate,
without liability on your part, the Company or the Selling Stockholder, except for the expenses to
be borne by the Company, the Selling Stockholder and the Underwriters as provided in Section 8
hereof and the indemnity and contribution agreements in Section 10 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Selling Stockholder and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any
23
controlling person of any Underwriter, or the Company, or the Selling Stockholder, or any
officer or director or controlling person of the Company, or any controlling person of the Selling
Stockholder, and shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof, neither the Company
nor the Selling Stockholder shall then be under any liability to any Underwriter except as provided
in Sections 10 and 13 hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Company and the Selling Stockholder as provided herein, the Company will reimburse
the Underwriters through you for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling
Stockholder shall then be under no further liability to any Underwriter in respect of the Shares
not so delivered except as provided in Sections 10 and 13 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by the Underwriters jointly or by Stifel, Nicolaus &
Company, Incorporated on behalf of the Underwriters as the representative; and in all dealings with
the Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement made or given by the Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representative in care of Stifel, Nicolaus & Company, Incorporated, One Montgomery Street, Suite
3700, San Francisco, CA 94104, Attention: General Counsel; if to the Selling Stockholder shall be
delivered or sent by mail, telex or facsimile transmission to counsel for the Selling Stockholder
at its address set forth in Schedule II hereto; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 10(e) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters Questionnaire or
telex constituting such Questionnaire, which address will be supplied to the Company or the Selling
Stockholder by you on request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and the Selling Stockholder and, to the extent provided in Sections 10
and 12 hereof, the officers and directors of the Company and each person who controls the Company,
the Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the term business day
shall mean any day when the Commissions office in Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
18. In case any provision in this Agreement shall be invalid, illegal or unenforceable, the
validity and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. This Agreement constitutes the entire agreement of the parties to this Agreement
and supersedes all prior and all contemporaneous agreements (whether written or oral),
understandings and negotiations with respect to the subject matter hereof. This Agreement may only
be amended or modified in writing, signed by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom the condition is
meant to benefit.
24
19.
This Agreement may be executed by any one or more of the parties hereto by facsimile or .pdf signature and in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
20. Each of the Company, the Selling Stockholder and the Underwriters hereby waive any right
it may have to trial by jury in respect of any claim based upon or arising out of this Agreement or
the transactions contemplated hereby.
21. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholder
are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction contemplated by this Agreement and all materials of any kind
(including tax opinions and other tax analyses) provided to the Company and the Selling Stockholder
relating to that treatment and structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and tax structure shall remain
confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any
person to comply with securities laws. For this purpose, tax structure is limited to any facts
that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign this Agreement and
return to us originally executed signature pages for the Company and the Selling Stockholder plus
one for each counsel and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and the Selling Stockholder. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the Company and the
Selling Stockholder for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
25
|
|
|
|
|
|
SPS Commerce, Inc.
|
|
|
By: |
/s/ Kimberly K. Nelson
|
|
|
|
Name: |
Kimberly K. Nelson |
|
|
|
Title: |
Chief Financial Officer |
|
|
|
BVCF IV, L.P.
|
|
|
By: |
Adams Street Partners, LLC, as General Partner
|
|
|
By: |
/s/ Jeffrey T. Diehl
|
|
|
|
Name: |
Jeffrey T. Diehl |
|
|
|
Title: |
Partner |
|
|
(Signature Page to Underwriting Agreement)
Accepted as of the date hereof at San Francisco, California
Stifel, Nicolaus & Company, Incorporated
By: /s/ Keith Lister
Name: Keith Lister
Title: Director
On behalf of each of the Underwriters
(Signature Page to Underwriting Agreement)
SCHEDULE I
|
|
|
|
|
|
|
Total Number of |
|
|
|
Shares |
|
Underwriter |
|
to be Purchased |
|
Stifel, Nicolaus & Company, Incorporated |
|
|
1,107,981 |
|
Craig-Hallum Capital Group LLC |
|
|
96,346 |
|
Total |
|
|
1,204,327 |
|
SCHEDULE II
|
|
|
|
|
|
|
Total Number of |
|
|
|
Shares |
|
|
|
to be Sold |
|
BVCF IV, L.P. |
|
|
1,204,327 |
|
|
|
|
(a) |
|
The Selling Stockholder is represented by Faegre & Benson LLP. |
SCHEDULE III
ISSUER FREE WRITING PROSPECTUSES